UPDATED 9/28/2015: U.S. Department of State Significantly Alters Visa Bulletin

The Department of State has issued an updated Visa Bulletin with revised "Dates for Filing Applications" for October 2015. Please disregard the dates in the original posting. The revised Dates for Filing Applications for the EB-2 category as follows:

China born applicants - January 1, 2013;

India born applicants - July 1, 2009; and

All other countries - the priority date is current.

This means that if your EB-2 I-140 petition has a priority date prior to the above specified dates, then you may file your I-485 application in October 2015. However, the applications will not be adjudicated until a visa number becomes available.

According to the DOS, after consulting with the USCIS, the revision was made "to better reflect a timeframe justifying immediate action in the application process."

Starting with the October 2015 Visa Bulletin, the U.S. Department of State (DOS) has created a new class of cut-off dates for determining when foreign nationals may file immigrant visa (IV) applications (i.e. applications for “green cards”) under employment- or family-based preference categories. This means foreign nationals applying for IVs through the National Visa Center/U.S. Consulate or Embassy may submit their applications based on a new chart with “Dates for Filing Applications” cut-off. In addition, there will be a chart for “Application Final Action Dates” for when the IV may be approved. This means the foreign national’s “Priority Date” must be either current or fall before the designated “cut-off” date(s).

Prior to this change, the Visa Bulletin published by the DOS contained only one series of cut-off dates, which could fluctuate from month to month, based upon the relevant foreign national's country/region of chargeability and preference category. Under the previous system, foreign nationals may submit IV or Form I-485 applications only when their priority dates were “current” or fall before the cut-off date, and the applications may only be approved if their priority dates were “current” or fell before the cut-off date.

With this latest update from DOS, there are now two categories of cut-off dates, both of which will be reflected in each monthly Visa Bulletin. One category, “Application Final Action Dates,” acts as the system did previously, in that it regulates when an IV or Form I-485 application may be approved. The other category, “Dates for Filing Applications,” regulates when an IV or Form I-485 application may be filed and would allow the filing of such an application, provided that the foreign national's priority date is before the relevant acceptance cut-off date. The DOS hopes that this change will provide the Visa Office with the best “visibility” into overall visa demand for both family-based and employment-based preference categories, allowing for predictable and steady movement in the cut-off dates for the Visa Bulletin.

Effects on Consular Processing of IV Applications

Mr. Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, which oversees the Visa Bulletin, explained to the American Immigration Lawyers Association (AILA) that the “Dates for Filing” is not a new concept. Rather, these are based on “qualifying dates” (described in the Foreign Affairs Manual) that the DOS has used internally for sending out “agent of choice” letters for foreign nationals who consular process. This date is based on visa demand and the DOS’s anticipation of visa availability for particular preference category and country of chargeability in the upcoming 8 to 12 months. The use of the “qualifying dates” or the “Dates of Filing” allows foreign nationals time to submit documentation for their IV applications, so that they may be considered “documentarily qualified” or ready for adjudication once their priority date is reached. This process provides the DOS with visibility into visa demand and thus minimizes unanticipated movement in the cut-off dates in the Visa Bulletin. Once the foreign national’s priority date becomes current (i.e. is earlier than the “Application Final Action Dates”), the foreign national can be scheduled for the IV interview.

The Visa Office will now publish these internal “qualifying dates” as the “Date for Filing Applications” in the Visa Bulletin. The procedure for consular processing remains the same.

Effects on Form I-485 Applications

According to Mr. Oppenheim, the U.S. Citizenship and Immigration Services (USCIS), which processes and adjudicates Form I-485 application for adjustment of status (i.e. applications for “green cards” for foreign nationals physically present in the United States), will continue to follow “Application Final Action Dates” chart. However, the USCIS has discretion to use either the earlier “Dates for Filing Applications” cut-off or the “Final Action Date” cut-off each month for accepting applications. In other words, while the “Date for Filing Applications” applies to the filing of IV applications each month, it does not apply automatically to the filing of Form I-485 applications. The USCIS will assess visa availability and make this determination on its website and in the Visa Bulletin each month.

When the USCIS accepts Form I-485 applications based on the “Dates for Filing,” it will pre-adjudicate the case and request a visa number from the DOS. If the “Application Final Action Dates” is current, the DOS will authorize an immigrant visa number, and USCIS will approve the case and produce the permanent resident card. If the “Application Final Action Dates” is not current, the Form I-485 application will be placed in the Visa Office’s “pending demand file,” and an immigrant visa number will be authorized once the priority date is current for final action.

This change also provides a number of benefits for foreign nationals currently living and working in the United States. In the past, many foreign nationals from countries like China and India had to wait 5 to 10 years before they were eligible to submit Form I-485 applications. In the meantime, employers had to continue extending their temporary work visas, and the sometimes decade-long wait left many foreign nationals in a state of limbo with respect to their career progression and family. Their dependents were ineligible for work permits, which meant the families were dependent on one source of income. The lengthy waiting time resulted in many skilled professionals terminating the green card process and returning to their home country. The ability to file the Form I-485 application earlier provides the foreign national with more flexibility to accept job promotions, and they and their families are eligible for secondary benefits such as employment authorization documents and travel documents authorizations.

October 2015 Visa Bulletin

For the October 2015 Visa Bulletin, the USCIS will permit foreign nationals to use the “Dates for Filing Applications” chart and cut-off dates for submitting Form I-485 applications for adjustment of status with USCIS. Step-by-step instructions about when to file your adjustment of status application can be found here.

The cut-off dates relevant to our clients are:

Foreign nationals with EB-2 China priority dates before May 1, 2014 may submit IV or Form I-485 applications, and DOS or USCIS may approve cases with Priority Dates before January 1, 2012.

Foreign nationals with EB-2 India priority dates before July 1, 2011 may submit IV or Form I-485 applications, and DOS or USCIS may approve cases with Priority Dates before May 1, 2005.

Foreign nationals with EB-3 China priority dates before October 1, 2013 may submit IV or Form I-485 applications, and DOS or USCIS may approve cases with Priority Dates before October 15, 2011.

To see the October 2015 Visa Bulletin in more detail, please click here.

Mr. Oppenheim anticipates that the “Dates for Filing” published in the October 2015 Visa Bulletin will remain the same or may move forward slightly throughout the fiscal year.

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